Legislation covering Fixed-Term Workers and Part-Time Workers

This is a guide to the relevant legislation covering Fixed-Term workers and Part-Time workers in the Republic of Ireland, Northern Ireland and Great Britain. It is not a directinterpretation. If you have any queries in relation to your rights please contact IBOA.

Section 1:

Fixed Term Workers

DOES THE LEGISLATION COVER ME?

Employees whose contracts:

Run for a specific term

Are for a specific purpose

Terminate on the completion of a specific task

are covered by the legislation.This legislation does not cover agency workers

WHAT HAS CHANGED?Under the new legislation in the Republic of Ireland, Northern Ireland and Great Britain, fixed term employees may not be treated less favourably than their full-time comparators in relation to their pay and other conditions of employment. Any provision in your contract that contravenes this may be challenged.

WHAT IS COVERED?• Terms and conditions of employment such as pay• Pension/access to pension schemes - provided you are working the equivalent of 20% of the normal working hours of a full-time comparator.• Entitlement to sick pay

PERMANENCY

REPUBLIC OF IRELANDContracts which have run non-stop for three years prior to July 2003 can now only be renewed one more time, and no longer than a year. Then the employer must make the employee permanent if he/she wishes to retain their services as an employee.

For example, Mary has been working for a bank for the last five years. Her contract is for one year, and has been renewed continuously since she has started work. If her employer wishes to retain her services they will have to offer her permanency in July 2004, or else renew her fixed-term contract and provide objective justification for not making her permanent. For more information on grounds for objective justification, see below.

All contracts commencing after July 2003 cannot last for more than four years on a fixed term basis.

When a fixed-term contract is being renewed, you are entitled to a written explanation from your employer as to why you have not been offered permanency, and why your fixed-term contract is being renewed. This should be issued to you no later than the date of the contract renewal

NORTHERN IRELAND/GREAT BRITAINWhere a fixed-term employee has been continuously employed on fixed-term contracts for four years or more, and is re-engaged on a fixed-term contract without his or her continuity being broken, the new contract has the same effect under the law as a permanent contract unless the renewal on a fixed-term basis was objectively justified.

PENSIONS

REPUBLIC OF IRELANDIt is unlawful for employers to treat fixed-term workers differently to permanent full-time employees in respect of access to pensions. However, it is important to note the following;

Your entitlement to pension schemes may depend on the number of hours you work compared to a full-time permanent employee.This is known as the pro rata principle.

The principle of fair treatment does not apply to workers who work less than 20% of the normal hours of a comparable permanent employee.

An employer can treat a fixed-term worker differently to a full-time permanent employee if he can provide objective justifications for doing so. Examples of objective justifications are outlined below.

ACCESS TO TRAINING/PROMOTIONAL OPPORTUNITIES

REPUBLIC OF IRELAND/NORTHERN IRELAND/GREAT BRITAIN

There is a duty on employers to provide training for fixed-term employees as far as is practicable.

NOTICE OF JOB VACANCIES

REPUBLIC OF IRELAND/NORTHERN IRELAND/GREAT BRITAIN

There is a duty on employers to inform fixed-term employees of job vacancies. If your employer places a notice in a public place, this should satisfy the requirement.

WHO IS MY COMPARABLE PERMANENT EMPLOYEE (CPE)?

REPUBLIC OF IRELANDA comparable permanent employee is someone who;

Does the same or similar work as you (or if there are differences, those differences must be negligible)

Does work of equal or greater value in terms of skill, physical or mental requirements and responsibility

Works under similar conditions

Is employed by the same employer. If the same employer doesn't employ a CPE, it is appropriate to look for a CPE who works for an associated employer. In the absence of the above options, if there is a collective agreement in force which specifies a CPE, such is deemed to be an appropriate comparator.

Who works for the same employer in the same establishment, doing the same or broadly similar work, and

Whose skills and qualifications must be taken into account where they are relevant to the job.

It is up to you to select an appropriate comparator. Your comparator does not need to be the same sex as you. It is important to research your comparator's terms and conditions and job role carefully.

WILL I GET INTO TROUBLE FOR ASSERTING MY RIGHTS?The law specifically forbids employers for treating you unfairly for invoking your legal rights. The courts can remedy any unfair treatment in your terms and conditions.

WHAT IF I AM DISMISSED WITHIN ONE YEAR?

REPUBLIC OF IRELANDThe Unfair Dismissals legislation only operates if you had been employed for over a year. However, if you feel your dismissal was as a result of differential treatment because of your status as a fixed-term employee, you are entitled to bring a case to the Rights Commissioner under the Fixed-Term and Part-Time Workers Acts in Ireland.

GREAT BRITAIN/NORTHERN IRELANDIn the UK, an Employment Tribunal can hear your case when you have been employed for less than a year, providing there is dismissal that is deemed to be automatically unfair. This definition includes dismissal of an employee who tries to exercise their rights under the relevant legislation.

OBJECTIVE GROUNDSAlthough you cannot be treated differently than a permanent full-time employee because of your status as a fixed-term worker, employers can justify differential treatment on objective grounds. There is no set list of what these grounds are, but the courts have accepted the following:

Different treatment for fixed-term employees is allowable insofar as:

It is in order to achieve the legitimate interests of the employer;

It is both appropriate; and

Necessary for this purpose

It is important you assess the terms and conditions of your contract as a whole when comparing them to a CPE. You may find that what your employer doesn't give you in one respect, he compensates you in another. For example, your pay may be lower than a CPE, but your holiday entitlements may be more. This may prove an obstacle to getting relief.

FURTHER INFORMATION FOR GREAT BRITAIN/NORTHERN IRELAND EMPLOYEESYou are entitled to a written explanation of any less favourable treatment by your employer, within 21 days of your request.

Part-Time Workers

REPUBLIC OF IRELANDUnlike the fixed-term workers legislation, the part-time workers legislation in Ireland covers agency workers. The person who pays the employee's wages is deemed to be the employer for the purpose of the Act.

A part-time employee shall not be treated in a less favourable manner than a comparable full-time employee in relation to:

Pay

Other benefits in kind

Promotion

Any person entitlements

A comparable employee is someone who:

Does the same or similar work as you (or if there are differences, those differences must be negligible)

Does the work of equal or greater value in terms of skill, physical or mental requirements and responsibility

Works under similar conditions

Is employed by the same employer. If the same employer doesn't employ a CPE it is appropriate to look for a CPE who works for an associated employer. In the absence of the above options, if there is a collective agreement in force which specifies a CPE, such is deemed to be an appropriate comparator

When calculating the amount of benefits you are entitled to, the pro rata principle applies, i.e. if your CPE works a 40 hour week and you work a 20 hour week, you are entitled in principle, to 50% of the benefits he/she has.

An employee cannot be penalised for invoking their rights under the legislation. Penalties can take many forms, such as dismissal or any other unfavourable change in an employee's terms and conditions.

NORTHERN IRELAND/GREAT BRITAINThe legislation differentiates between a worker and an employee. An employee is someone who works under a contract of employment, whereas a worker is someone who either works under a contract of employment or any other contract express or implied, be it oral or in writing the status of which is not that of client and customer.

Unlike the legislation in the Republic, the regulations cover both full-time workers who switch to part-time work and full-time workers who return to work on a part-time basis, providing they return to work within in a twelve-month period, and return to the same job or a job at the same level.

The legislation prohibits less favourable treatment of the employee with respect to any act or deliberate failure to act by the employer.

This covers areas such as:

Pay

Overtime

Pensions

Training

Redundancy entitlements.

When making a comparison a part-time employee must select a comparable permanent employee. A comparable permanent employee is someone who:

Who works for the same employer in the same establishment,

Who does the same or broadly similar work, and

Whose skills and qualifications must be taken into account where they are relevant to the job.

Your CPE can be either male or female. They do not necessarily have to be the same gender as you.

EXCEPTIONSEntitlement to pension schemes doesn't apply where the part-time employee works less than 20% of the hours of the comparable full-time employee.

The legislation does not apply to casual employees (i.e. part-time employees who have been in continuous service for less than 13 weeks), or employees in service which could not reasonably be regarded as regular or seasonal employment.

REPUBLIC OF IRELAND/NORTHERN IRELAND/GREAT BRITAINAn employer can treat part-time employees differently if they offer objective justifications for doing so. Objective justifications are reasons for different treatment other than the status of the employee as part-time worker. Furthermore, this treatment must be for the legitimate objectives of the employer and must be appropriate and necessary.

If an employee feels he/she has been subjected to less favourable treatment, they are entitled to a written statement from their employer outlining the reasons for the treatment Any term in your contract that proposes to contravene this legislation is void. Your employer cannot penalise you for exercising your rights under the legislation, or refusing to give up one of your rights when requested to do so by your employer.

IBOA, The Finance Union represents both full-time and part-time members, be they permanent or fixed-term.For information please contact01 - 4755308 - when calling from the Republic of Ireland02890 - 200130 - when calling from Northern Ireland or Great Britain

When you are a member of the Union, IBOA can negotiate on your behalf for your rights under the legislation.

Special thanks to the following for their help in compiling this document:Joan Carmichael - ICTUAnne Hope - NIC-ICTUClaire Bulman - SIPTU